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Faculty in the News

Ohio State law professors are sought out for their expertise by a number of news media outlets and blogs with large audiences. Topics range from the death penalty to voter ID laws to artificial insemination – and our faculty members’ quotes and analysis can be found everywhere from small-town and national newspapers to radio broadcasts to cable news programs. The following is a selection of media coverage for Moritz College of Law faculty.

To request an interview, media should click here for more information.

2004 Media Hits

In an Associated Press story about what happens with digital information bits after their owner dies, Professor Peter P. Swire questioned whether transferring ownership of an e-mail account is a good idea.

In a New York Times article about voting problems in Ohio, Professor Edward B. (Ned) Foley, said there were more problems than usual in Ohio, but not enough to cast doubt on the results. Professor Daniel Tokaji also said it was unlikely the problems made a difference in the outcome.

In a New York Times article about voting problems in Ohio, Professor Edward B. (Ned) Foley, said there were more problems than usual in Ohio, but not enough to cast doubt on the results. Professor Daniel Tokaji also said it was unlikely the problems made a difference in the outcome.

In a Columbus Dispatch story about the ruling of a federal judge that said punch-card voting systems in Ohio did not violate the rights of voters, Professor Daniel Tokaji said that he expects the ruling to be appealed.

In an Akron Beacon Journal story about a 41-page petition before the Ohio Supreme Court, Professor Daniel Tokaji said the Jackson-led election challenge raised concerns but did not offer proof that Kerry actually won the state.

In a New York Times story about Victor Conte Jr.'s remarks on the ABC program "20/20" about widespread doping in elite sport, Professor Alan C. Michaels wondered whether Conte had received payment from ABC or was seeking a book deal.

Salon.com discussed the legal efforts to challenge the election results in Ohio. Professor Steven Huefner said the efforts represent "an incredible long shot." He also was quoted as saying that "courts are just incredibly reluctant to overturn the results of an election absent a really strong showing that something happened that affected the outcome." These quotes were also picked up in a similar article in the Washington Post.

A story in the Kansas City Star discussed the impact of technology on privacy issues. Professor Peter P. Swire said people often are unaware of the ways things such as e-mail can cost them their privacy.

In a Cleveland Plain Dealer story on Issue 1 and domestic partner benefits offered by Ohio universities, Professor Ruth Colker says the universities' posture allows them to avoid initiating costly and potentially unsuccessful litigation, while making a good-faith argument for continuing the benefits they view as a valuable recruiting tool. "Given the vagueness of the language of Issue 1, it's hard for anyone to know what it really means," Colker said in an interview. "The best and clearest reading is that it bans gay marriage and civil unions and nothing else. Since we don't have gay marriage and civil unions in the state of Ohio right now, it really doesn't have any effect."

WBNS-TV (Columbus, Ohio) reported that MBNA pays The Ohio State University $1.3 million per year to provide MBNA with the names, phone numbers, and addresses of the 52,000 students of the University. Additionally, the Ohio State Alumni Association has an exclusive agreement with MBNA. Professor Peter P. Swire said the university should have a system for students to "opt-out" of marketing to protect their financial privacy. "And that's what OSU doesn't have right now," said Swire.

A story by the Associated Press that appeared in The New York Times discussed a study conducted by the United States Sentencing Commission that examined how well the Federal Sentencing Guidelines had brought uniformity to punishments and found that disparities still existed among races and regions of the country. Professor Douglas Berman said, "Nobody wants to go back to the bad old days of complete unguided judicial discretion."

An article that appeared in Washington Technology discussed new software, "Anna", that lets government agencies share information while still protecting the confidentiality of the information. Professor Peter Swire said that the technique used by the software is not a complete solution to maintain anonymity.

At the Ohio State University, The Lantern reported that Ohio colleges and universities have yet to change their same-sex partner benefits in light of Issue 1 because of uncertainty in the law surrounding the amendment. Professor Marc Spindelman noted that questions regarding equal protection and separation of church and state need to be answered regarding the new amendment. It is "no small irony that the amendment's proponents, who advocated taking powers away from courts, wound up multiplying them."

A story in the Columbus Dispatch noted that Kerry decided the outstanding votes would not be enough to bridge the gap. Professor Edward B. (Ned) Foley said the state should look critically at areas of its elections system that drew criticism and lawsuits during the campaign.

An article in discussed the mathematics behind Kerry's concession of the 2004 presidential election. Professor Daniel Tokaji speculated that even if there were 250,000 provisional votes from Ohio voters, it would not be enough to bridge the gap between the candidates. Professor Edward B. (Ned) Foley noted that the Help America Vote Act would allow more provisional votes to be accepted by election officials and ultimately counted.

An article in The New York Times discussed the mathematics behind Kerry's concession of the 2004 presidential election. Professor Daniel Tokaji speculated that even if there were 250,000 provisional votes from Ohio voters, it would not be enough to bridge the gap between the candidates. Professor Edward B. (Ned) Foley noted that the Help America Vote Act would allow more provisional votes to be accepted by election officials and ultimately counted.

An article by the Associated Press that appeared in The Mercury News discussed the impact on individuals when the constitutional amendment to bay gay marriage takes effect. Professor Marc Spindelman said that Ohioans will be surprised by the amendment's reach into home lives. Attorneys for unmarried clients charged with domestic violence will be able to "trout out Issue 1 in service of their defense."

A story in the Columbus Dispatch discussed lawsuits that were filed to challenge election procedures including how provisional ballots will be counted. Professor Daniel Tokaji said, "Ohio has a responsibility to treat all voters equally." (registration required)

An article in the Columbus Dispatch noted that the presidential race could hinge on Ohio's provisional ballots. Professor Daniel Tokaji said that provisional ballots are the "hanging chad" of the 2004 presidential election. (registration required)

A story that appeared in USA Today speculated that vote counting will continue in Ohio for weeks even after Kerry's concession. Professor Daniel Tokaji noted how difficult it would be for Kerry to win in Ohio based on the number of provisional ballots.

Reuters-UK reported that a federal court order required election officials in counties where there were long lines to vote to allow the voters to use paper punch card ballots in addition to the touch screen to speed up the process. Professor Steven Huefner questioned whether the order came in time to do any good.

A story in the Oakland Tribune noted that long lines and broken voting machines appear to be the main setbacks amid high voter turnout. Professor john a. powell said, "Everybody's fighting for every vote, frankly."

Reuters discussed whether litigation would continue after presidential candidate John Kerry conceded the election. Professor Steven Huefner said, "I don't think we were ever looking at another Florida. The margin of votes for Bush was too large for Kerry to overcome."

The Los Angeles Times discussed the similarities between the Florida controversy over "hanging chads" in the 2000 presidential election and the present day controversy over uncounted provisional ballots in Ohio. Professor Daniel Tokaji noted that there are very few standards for assessing the validity of a provisional ballot.

An article reported by the Wall Street Journal discussed new tools that are available this year for registering concerns and tracking ballot status. Professor Edward B. (Ned) Foley discussed the number of Ohio voters expected to cast provisional ballots. (Search for "Foley")

A story in U.S. News and World Report discussed the potential for a legal "showdown" in Ohio concerning the presidential election. Professor Steven Huefner discussed the process for counting provisional ballots cast and Professor Daniel Tokaji noted that if the number of provisional ballots is large enough to determine the election, then disputes could arise over which ones should be counted.

A story in U.S. News and World Report discussed the potential for a legal "showdown" in Ohio concerning the presidential election. Professor Steven Huefner discussed the process for counting provisional ballots cast and Professor Daniel Tokaji noted that if the number of provisional ballots is large enough to determine the election, then disputes could arise over which ones should be counted.

A story by the Ohio News Network discussed the passage of the constitutional amendment to ban gay marriage in Ohio. Professor Marc Spindelman suggested that the strongest argument against the ban might be in equality. "The argument will likely be in part, though not exclusively, that issue one violates the rights of unmarried couples both same sex and cross sex."

In the Sun-Sentinel, Professor Edward B. Foley predicted that a ruling would be issued in a 6th Circuit appeal in a case involving GOP challengers would be made before the 6:30 a.m. opening of the polls.

A story in The San Francisco Chronicle discussed the number of expected voters that would turn out for the 2004 presidential election. Discussing the Help America Vote Act, Professor Edward B. (Ned) Foley said that the reviews of HAVA had been mixed.

The Baltimore Sun discussed legal challenges concerning the 2004 presidential election that threaten to last for weeks. Professor Dan Tokaji noted that challengers didn't show up in some precincts and there were only scattered reports of challengers raising objections to individual voters.

A story reported by Bloomberg discussed the decision of the Sixth Circuit to allow challengers to be present in Ohio polling places. Professor Terri Enns noted that challengers at polling places could delay voting and lead to lawsuits after the election.

A story in The New York Daily News reported that a recent ruling of the Sixth Circuit allowed challengers to be present in Ohio polling places. Professor Edward B. (Ned) Foley's "margin of litigation" theory was mentioned while discussing other possible sources of litigation.

An article in USA Today discussed the litigation surrounding whether challengers would be allowed at the polls. Professor Edward B. (Ned) Foley predicted that litigation would occur if the margin of victory is 1percent or less.

A story reported in The Mercury News discussed the GOP's efforts to challenge the eligibility of voters in polling places. Professor Edward B. (Ned) Foley noted that the mobilization of lawyers is "extraordinary" and speculated that lawsuits might be proliferating because there is "a perception that litigation mattered the last time."

A story by the Associated Press noted that Professor Daniel Tokaji expects a recount if the victory margin is less than one percentage point. This story appeared, among other publications, in The Miami Herald and can be viewed on News Channel 5 Cleveland/Akron's website.

An article in The Plain Dealer discussed the effect provisional ballots could have on the 2004 presidential election. Professor Daniel Tokaji noted that provisional ballots appear to be the "hanging chad" of the 2004 presidential election.

In a Columbus Dispatch story about the closeness of the presidential election, Professor Daniel Tokaji said that it essentially would be malpractice if the party lawyers weren't ready for lawsuits after the bitter fight in 2000.

Professor Peter Shane, the director of the Center for Law, Policy and Social Science, wrote this op-ed column which appeared in The Washington Post. Shane noted that if the 2004 presidential election brings another mismatch between the electoral and popular votes, maybe there will be national agreement that the current electoral college system has got to be reformed.

An article that appeared in The Akron Beacon Journal noted that one in seven votes went uncounted near Akron's west side in the 2000 presidential election. Professor Daniel Tokaji noted that there was a substantial disparity along racial and economic lines.

The Columbus Dispatch discussed the "showdown" in Ohio for the 2004 presidential race. In anticipation of a possible legal battle, Professor Daniel Tokaji said that he would be surprised if the parties did not already have litigation papers ready to be filed. (registration required)

In a Cleveland Plain Dealer story about Ohio Secretary of State Kenneth Blackwell's efforts to prevent challengers at the polls, Professor Steven Huefner said that Blackwell would have difficulty keeping challengers out of polling areas.

In a Columbus Dispatch story about what will happen to individuals who are challenged at the polls, Professor Daniel Tokaji said that throwing the ballots into the provisional-voting pile is like throwing them into a black hole.

In this Los Angeles Times story, Professor Edward B. (Ned) Foley said that Ohio and Florida are two states that are most likely to have litigation that could tip the balance of the election. The story also noted that legal issues have become so thick that the Moritz College of Law has begun publishing a daily status report on election-related court cases.

In the Washington Post, Professor Edward B. (Ned) Foley called Ohio Secretary of State J. Kenneth Blackwell's decisions with regard to the upcoming election "a mixed record" but does not see a pattern of political bias.

In the New York Times, Professor Edward B. (Ned) Foley predicted there will be litigation following the presidential election if there is a state that is critical to winning the Electoral College and the margin of victory in that state is less than the number of provisional ballots in that state.

Professor Terri Enns, a member of the Election Law @ Moritz team, noted in the Columbus Dispatch that it is disturbing that individuals who have moved away are still on the Franklin County voter rolls. She said that there are potential problems, but there are a lot of Election Day safeguards to keep it from swaying the election.

Professor Dan Tokaji was quoted in the New York Times about a federal judge's ruling in a dispute over how to count provisional ballots, a new voting requirement that could become the hanging chad of 2004.

In The Chronicle of Higher Education, Professor Peter Swire was quoted about the provision of a law that allows government officials to demand a wide range of communications records from Internet-service providers and to forbid recipients of the letters to tell anyone about the orders.

In a Columbus Dispatch story noting that the chairman of the U.S. Election Assistance Commission supports Ohio Secretary of State J. Kenneth Blackwell's position on provisional ballots, Professor Daniel Tokaji said that there’s a real possibility what’s going on here in Ohio could have nationwide implications.

An Associated Press story in the Seattle Post-Intelligencer noted that the Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism. The inmates' lawyer, Ohio State University law professor David Goldberger, said prisoners are stripped of many of their rights, but access to religious services should not be one of them.

A story in the Columbus Dispatch noted upcoming cases to be heard by the U.S. Supreme Court, including a case from Ohio centering on the constitutionality of a federal law mandating that state prisons accommodate prisoners’ religions. State Solicitor Douglas R. Cole, who is on leave from the Moritz Law faculty, says the state's main problem with the federal law is that it prevents prison wardens from making common-sense safety decisions on what inmates can be allowed to do. David Goldberger, a Moritz professor and the inmates' lead counsel, said he hopes the Supreme Court will issue a ruling clarifying that Congress or a state legislature can pass a law that "accommodates legitimate religious exercise."

In the Toledo Blade, Professor Edward B. (Ned) Foley said a First Amendment principle is that when one campaign lies, the other may respond, and the citizens decide. The article covered the third Election Law @ Moritz event, a discussion of false campaign advertising.

A story in The Cincinnati Enquirer noted that the language of the proposed amendment to the Ohio Constitution banning same-sex marriage is broad and vague. Professor Marc Spindelman noted that other states have similar amendments with broad language but that is not reassuring that the proposed amendment will not have a devastating effect in Ohio.

A story in The Cincinnati Enquirer discussed the possible effects on domestic partnership benefits if voters approve the proposed amendment to the Ohio Constitution banning same-sex marriage. Professor Marc Spindelman noted that the amendment goes much further than banning gay marriage. Professor Spindelman was also quoted in related stories that appeared in the Port Clinton News Herald (Ohio) and The Lancaster Eagle-Gazette (Ohio).

Professor Douglas Berman noted that more than 1,000 people are sentenced each day in federal and state courts. The story, which appeared in the Inland Valley Daily Bulletin (Ontario, Calif.), detailed results of two federal sentencing cases argued before the U.S. Supreme Court on October 4.

In a Pittsburgh Post-Gazette story about the beginning of the 2004-2005 U.S. Supreme Court term, Professor Douglas Berman noted that the justices needed to deal with the fallout from a decision it rendered three months ago, U.S. v. Blakely, which dealt with federal sentencing guidelines. He noted that the federal sentencing system has ground to a halt.

In a Christian Science Monitor about how the U.S. Supreme Court answer to the question of whether the federal sentencing guideline empowers judges to perform a function the Constitution reserves for jurors, Professor Douglas Berman it affects every case that works its way through the criminal justice system.

In an interview on Fox News Channel, Professor Douglas Berman said that the Blakely decision, which declared federal sentencing guidelines unconstitutional, is the biggest criminal justice case before the U.S. Supreme Court in at least 25 years, possibly in the history of the court.

The Associated Press interviewed Professor Marc Spindelman for an article concerning the proposed amendment to the Ohio Constitution banning same-sex marriage. Professor Spindelman noted that many people "are struck by how far it sweeps." This article appeared in the following publications: The Repository (Canton, Ohio), Miami Herald, The State (South Carolina), and the Mercury News (San Jose, Calif.).

In a Cleveland Plain Dealer story about Discover Card's efforts to collect from a Cleveland resident, two Moritz Law professors, Gregory Travalio and Larry Garvin, said that credit agreements have a few strikes against them and there are limits to what contracts can do.

In a Cleveland Plain Dealer story about Discover Card's efforts to collect from a Cleveland resident, two Moritz Law professors, Gregory Travalio and Larry Garvin, said that credit agreements have a few strikes against them and there are limits to what contracts can do.

In the Los Angeles Daily Journal, Professor Mary Ellen O'Connell said that the release of Yaser Esam Hamdi, a Saudi Arabian with dual American citizenship who was being held indefinitely by the U.S. as an enemy combatant, could give ammunition to defense lawyers who are representing other detainees. (Registration Required)

Professor Mary Ellen O’Connell said on NPR that the release of Yaser Hamdi, a Saudi Arabian with dual American citizenship who was being held indefinitely by the U.S. as an enemy combatant, sends a warning signal to courts to be skeptical about the government's claims on Jose Padilla and others.

Professor Dale Oesterle says in his regular column in the Boulder Daily Camera that a judge's willingness to consider liability for a Venture Capital fund behaving more-or-less as many funds often do in the industry is an ominous warning.

In U.S. New & World Report, Professor Daniel C.K. Chow noted that if you are a brand owner, you can’t fight counterfeiting without hiring private investigators or having in-house counterfeit investigators.

Professor Peter P. Swire, in a guest editorial for the Center for American Progress, says that President Bush's executive order establishing the "President's Board on Safeguarding Americans' Civil Liberties" is too little, too late.

Professor Dale Oesterle says in a San Jose Mercury News that lock-up expiries tend to jolt a stock more when there's market uncertainty. The story detailed "lock-up" rules that have kept Google employees from selling shares since the initial public offering two weeks ago. The story also appeared in the Miami Herald, the Wichita (Kan.) Eagle, and the Philadelphia Inquirer.

Dan Tokaji was quoted in USA Today about the touch screen voting systems in Florida. "I do think that it is the best available system when you consider all the facts, including voting rights issues," he said.

Two Moritz Law faculty were quoted in the Columbus Dispatch regarding charges filed against the man suspected of the Linden-area rapes. Professor Joshua Dressler said that the statute of limitations would not permit some of the rape charges because they occurred more than six years ago. In spite of the defendant's request for a speedy trial, Professor Ric Simmons said that a motion filed by the defendant's attorney to dismiss some of the charges would stop the clock until the motion is heard.

Two Moritz Law faculty were quoted in the Columbus Dispatch regarding charges filed against the man suspected of the Linden-area rapes. Professor Joshua Dressler said that the statute of limitations would not permit some of the rape charges because they occurred more than six years ago. In spite of the defendant's request for a speedy trial, Professor Ric Simmons said that a motion filed by the defendant's attorney to dismiss some of the charges would stop the clock until the motion is heard.

In a Columbus Dispatch story about a motion to suppress statements made by the alleged highway shooter, Charles A. McCoy Jr., Professor Joshua Dressler said that case law is on the side of the prosecution.

Professor Daniel C.K. Chow was featured on CBS' 60 Minutes about counterfeiting in China. He said "We have never seen a problem of this size and magnitude in world history. There's more counterfeiting going on in China now than we've ever seen anywhere." (This was rebroadcast from January 28, 2004.)

On National Public Radio's Morning Edition, Professor Mary Ellen O'Connell said a Pentagon draft memo, which was leaked to the press in June, provides an opportunity for Pvt. England's defense team to argue that she was reasonably following orders.

Interviewed on WBNS-10TV-Columbus, Professor Ruth Colker said that proponents of a constitutional ban on same sex marriage may have a difficult time convincing the U.S. Supreme Court that their amendment is not punishing a particular group.

Interviewed on National Public Radio's All Things Considered, Professor Douglas Berman discussed the decision of the U.S. Supreme Court to consider the federal sentencing guidelines in the wake of the Blakely decision.

In a Legal Times article about Supreme Court's decision in Blakely v. Washington, Professor Douglas Berman said that the government is offering up cases that are "ugly on the facts" in which Blakely has resulted in what could seem to the Court and to the public as "underpunishment."

Interviewed on National Public Radio's Weekend Edition, Professor Douglas Berman said that the Blakely decision found that every one of the facts that are critical to enhancing the defendant's sentence has to be found by a jury or admitted by the defendant.

On the weekend edition of National Public Radio's All Things Considered, Professor Mary Ellen O'Connell said that the ultimate result is that human rights are enforced and those responsible for the abuse are held responsible.

In the Dayton Daily News, Professor Peter Swire said that U.S. Customs agents, now part of the Department of Homeland Security, have always been charged with the investigation of global smuggling of goods, including pornography.

In an article in Federal Computer Week, Professor Peter Swire said that a recent move by Transportation Security Administration officials to withhold records about active investigations re-creates conditions that led to the Privacy Act.

In a story about the U.S. Supreme Court's recent ruling affirming the rights of detainees held as enemy combatants, National Public Radio's Nina Totenburg interviewed Professor Mary Ellen O'Connell. Professor O'Connell said that the detainee cases stand for the principle that the president does not have the right to indefinitely detain persons whom he has labeled to be enemy combatants.

In a Cleveland Plain Dealer story about the death of a crime victim following an altercation with a homeless man, Professor Joshua Dressler said that most states would not allow prosecutors to seek murder charges based on an assault.

In a Washington Post story about a U.S. Court of Appeals case ruling that expands e-mail monitoring by businesses and government, Professor Peter Swire said that the ruling means that an e-mail provider can intercept one's e-mail, read them, and use them for business purposes.

Professors Joshua Dressler and Douglas Berman were quoted in a Cincinnati Post story about a Supreme Court ruling that could make federal sentencing rules unconstitutional. They said that the June 24 decision in Blakely, along with the subsequent ruling on Tuesday by a federal judge in Utah may mean reworking the federal sentencing guideline system.

Professors Joshua Dressler and Douglas Berman were quoted in a Cincinnati Post story about a Supreme Court ruling that could make federal sentencing rules unconstitutional. They said that the June 24 decision in Blakely, along with the subsequent ruling on Tuesday by a federal judge in Utah may mean reworking the federal sentencing guideline system.

A federal judge in Utah ruled that the federal sentencing guidelines were unconstitutional, according to a story in the New York Times. In the story, Professor Douglas Berman said that the decision by Judge Paul G. Cassell of Federal District Court in Salt Lake City was likely to be influential.

Professor Mary Ellen O'Connell told Nina Totenberg of NPR's Morning Edition that the core decision in the Guantanamo Bay case is that there is no right to hold persons indefinitely in pretrial detention.

In a Boston Globe story about the call for a paper trail in the use of electronic voting technology, Professor Dan Tokaji said that well meaning activists holding out for a paper replica of their ballots have extended the use of flawed punch-card balloting.

In a Scripts Howard News Service story about how state and federal prosecutors are applying antiterrorism laws adopted after 9/11 to other broad, run-of-the-mill probes, Professor Peter Swire says he's not surprised. He says that a little noted impact of the Patriot Act is that prosecutors can add more charges against defendants, even when terrorism isn't involved.

In a story by Nina Totenberg on National Public Radio's Morning Edition which reports that two memos prepared by Bush administration lawyers and high-ranking officials suggest the president cannot be held to federal and international rules prohibiting torture, Professor Mary Ellen O'Connell reminds listeners that the U.S. Supreme Court has limited the president's power to act, even during war, and that the commander-in-chief's authority is limited by the rule of law.

June 7, 2004
In the Wall Street Journal, Professor Mary Ellen O'Connell said that a report prepared for Defense Secretary Donald Rumsfeld outlining U.S. laws and international treaties forbidding torture of prisoners seemed "designed to find the legal loopholes that will permit the use of torture against detainees."

In the Washington Post, Professor Peter Swire was quoted about American privacy law and how it relates to the Federal Trade Commission accusing two men of attempting to extract more than $10 million from the checking accounts of thousands of individuals for phony discount pharmacy cards that consumers never ordered.

Professor Peter Swire was quoted on ABC's World News Tonight, March 29, 2004, concerning the ongoing litigation about the constitutionality of the new statute banning partial birth abortions. Professor Swire discussed the confidentiality of women's medical records that the Justice Department is claiming it needs in order to litigate the case.

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